Getting in the way: The demise of early termination at the antitrust agencies

Earlier this month, the Federal Trade Commission (FTC) and the Department of Justice’s (DOJ) Antitrust Division released their Hart-Scott-Rodino (HSR) Annual Report for Fiscal Year (FY) 2025. This is the first HSR Report to include data on the administration of the premerger notification program under the updated Premerger Notification Form (“New Form”) which was ultimately vacated by a federal court in February 2026.

The latest HSR Report reaffirms the demise of early termination (ET), a tool the antitrust agencies can use to allow companies to close their merger before the expiration of the statutory 30-day waiting period. It’s been particularly difficult to measure ETs since FY 2021, when the FTC and DOJ “temporarily” suspended the practice. Adding to the difficulty was the New HSR Form and its subsequent invalidation in federal court. With the agencies again looking to promulgate a new rule governing the HSR Form, for now it looks like ET will not be utilized as much in the future as it has in the past.

It’s clear that merging parties were less likely to request early termination during FY 2025, and the antitrust agencies were less likely to grant it. It’s difficult to discern to what extent the filing form changes contributed. The number of transactions valued at more than $1 billion nearly tripled compared with six fiscal years earlier, so the sheer size and complexity of transactions may also be contributing to the decline.

The number of reportable transactions (2,006) during FY 2025 aligned with historical averages, apart from the surge seen in FYs 2021 and 2022. And 911 (45 percent) transactions requested ET, of which only 265 (29 percent of requests) were granted. Both figures are far below historical averages. From FYs 2016 to 2020, about 72 percent of transactions requested ET, and 77 percent of those were granted.

ET was still suspended during the first four months of FY 2025 before the final form rule went into effect, which certainly contributed to an initial slump. But during FYs 2022 to 2024, three full years of ET being suspended, the request rate ranged from 42.2 percent to 43.2 percent, so a request rate closer to half may be the new normal.

The first 58 early terminations granted during FY 2025 don’t appear to have been published in the Federal Register, as required by the HSR Act (15 U.S.C. § 18a(b)(2)). Some ETs published in the Federal Register were also never posted in the FTC’s Legal Library: four granted on July 24, 2025; nine granted on August 15, 2025; and one granted on September 23, 2025.  

Looking at those posted in the Legal Library for FY 2026 thus far, it appears that the FTC and DOJ have gotten back up to speed in accurately reporting the granting of ETs. Nonetheless, it looks as if the decline of the ET program may be here to stay. There have been at least 1,727 transactions filed so far in FY 2026, according to the FTC’s Legal Library. About 526 of those have been granted ET, a grant rate of 30 percent of total transactions filed. Historically, more than half of total transactions filed, not just those requesting, have been granted ET. It’s also important to note that the federal government was shut down during the first 43 days of the current FY. While the agencies continued to allow parties to file, ET was generally suspended.

The Merger Filing Fee Modernization Act of 2022 was meant to alleviate the administrative burden on smaller mergers while also providing the antitrust agencies with the resources they need to conduct premerger review of larger transactions. The antitrust agencies reported that they brought in an extra $254,392,105 in filing fees due to the Merger Filing Fee Modernization Act during FY 2025 and $202,620,539 in FY 2024. One would hope that the additional information collected with the New Form and the extra resources would have allowed the agencies to keep up the pace of granting ET, but that doesn’t appear to be the case.